Let's see if I can get a short list in here before MJW beats me to it.

Motion to preclude defense bringing up the penalty for the charged crime, during closing argument

Motion to preclude defense bringing up Martin's past (school suspension, use of pot, ever been in a fight, contents of social media, wore gold grill, any school records, text messages before 26 Feb, text messages on 26 Feb unless admitted by court after hearing)

Motion to preclude defense eliciting opinion as to Zimmerman innocence (I think this is aimed at preventing SPD and others from testifying they lacked probable cause)

Motion to exclude toxicology report. Bernardo specifies the low-level pot report, and does not refer to any other report.

Motion to preclude defense from eliciting testimony or mentioning to the effect that the state's failure to call certain witnesses is because those witnesses were not favorable to the state.

Motion to preclude defense from eliciting testimony as to hearsay statements by Zimmerman to witnesses. I don't have a quick thought as to what hearsay by Zimmerman might be involved. Maybe that Martin was "acting suspiciously" where the conclusion (acting suspiciously) is hearsay, but I think that argument fails. In general, I think this motion is the state trying to force Zimmerman to take the stand.

The state objects to O'Mara's requires for a Frye hearing, and the state asserts (without producing any evidence) that their audio experts pass the Frye test.

The state seeks an order compelling defense to comply with discovery rules, and cites an example of a defense witness who testified having produced a map for the defense, but the defense was unable to produce the map; and another example where a defense witness had given a video recorded statement to defense counsel, but defense counsel didn't provide the recording to the state until the day of state deposing the witness - now state will depose the witness again; and a third example where defense provided reports that its witnesses would testify about, moments before those witnesses were deposed by the state.

Title: Re: State motions from 10 May
Post by: nomatter_nevermind on May 13, 2013, 08:26:08 AM

the state asserts (without producing any evidence) that their audio experts pass the Frye test.

I don't think that is an accurate characterization.

The prosecution cites case law to the effect that a Frye hearing is not required unless there is a 'new or novel scientific theory being presented'. (I don't know what the distinction is between 'new' and 'novel'. I think it's just excess legal verbiage.) The prosecution argues that the testimony they propose to offer is not 'new or novel', citing previous cases in which they allege the same kind of testimony has been admitted, 'in some cases, by these very same witnesses'. They list six cases, two of them in Florida. (The Connecticut case is a civil case, not the criminal case in which Tom Owens applied his new methods.)

Title: Re: State motions from 10 May
Post by: Cylinder on May 13, 2013, 08:55:11 AM

State's Motion in Limine as to Appropriate Penalty or Disregard of Law (http://www.gzdocs.com/documents/0513/051013_limine_appropriate_penalty.pdf)

The state is seeking to prohibit testimony by witnesses or statements by attornies regarding the appropriate penalty for Zimmerman or suggesting that the law be disregarded.

The state is seeking to prohibit testimony regarding Tayvon martin being suspended, having ever been in a fight, use of marijuana, any social media names or content, ever wearing fake gold teeth, performance in school, text messages before Feb. 26 and text messages on Feb. 26 that are not relevant.

Zimmerman's statement to Officer Tim Smith that he (Zimmerman) was calling for help. His statement to W-13 that Martin was beating on him.

That's not hearsay by Zimmerman. It would be hearsay by Smith and W-13. Maybe Bernardo doesn't literally mean "self serving hearsay statements by defendant," but aims to preclude hearsay by Smith and W-13 being used to establish that Zimmerman was calling for help and Martin was beating on Zimmerman.

Title: Re: State motions from 10 May
Post by: RickyJim on May 13, 2013, 09:55:26 AM

That's not hearsay by Zimmerman. It would be hearsay by Smith and W-13. Maybe Bernardo doesn't literally mean "self serving hearsay statements by defendant," but aims to preclude hearsay by Smith and W-13 being used to establish that Zimmerman was calling for help and Martin was beating on Zimmerman.

The state knows that the game is over if Zimmerman stays off the stand. So I regard this motion as a "Hail Marry" to see if they can trick the defense into calling Zimmerman. The defense has much better stuff in Witness #6 and the EMTs who will testify as to Zimmerman's injuries and I doubt getting Smith and W-13's statements in will get them to call Zimmerman.

Title: Re: State motions from 10 May
Post by: AJ on May 13, 2013, 10:06:25 AM

That's not hearsay by Zimmerman. It would be hearsay by Smith and W-13. Maybe Bernardo doesn't literally mean "self serving hearsay statements by defendant," but aims to preclude hearsay by Smith and W-13 being used to establish that Zimmerman was calling for help and Martin was beating on Zimmerman.

"evidence, testimony, questioning or other reference to self-serving hearsay statements by defendant to witnesses..."

I took that as another motion against Serino's possible testimony. I'm probably wrong though.

Title: Re: State motions from 10 May
Post by: RickyJim on May 13, 2013, 10:13:42 AM

I find the motion concerning the evidentiary hearing the most interesting since it may relate to evidence we don't know about yet.

Quote

The State notes that the Defendant has listed one such individual himself;

Does anybody remember such a listing by the defense? One thing that makes the motion unclear is if is also applies to voice identification testimony from non experts. I would be interested in hearing if any experts think non experts can possibly identify screams under the conditions of the 911 call.

From the wording of the memo, it seems that the prosecution will not call Owen at trial since his program is certainly a non standard method of voice identification and would certainly have to pass a Frye hearing. The identity of the State witness, whom the defense refused to depose, remains a mystery.

Where's the state's motion to bar defense counsel from entering the courtroom during the trial?

And where's the motion to forego the trial and proceed directly to sentencing?

IANAL, so I threw up in my mouth a little when reading these motions.

For those amongst us who are lawyers-- are there legal grounds for these motions? And is it likely Nelson will grant them?

Title: Re: State motions from 10 May
Post by: AJ on May 13, 2013, 10:18:05 AM

Actually, thinking back on it... I think all of the limine motions might be in regards to what Serino might testify to. In nearly all of them BDLR says that questions of the type they're wanting to eliminate in trial were asked in a deposition. All of those subjects Serino would have some knowledge on, since he was lead investigator.

Title: Re: State motions from 10 May
Post by: RickyJim on May 13, 2013, 10:19:25 AM

Does the motion opposing introduction of TM's school records and social media only imply to their introduction in the defense case? If the motion was granted would the defense be prevented from using them to impeach witnesses that testify that Trayvon was a gentle, non confrontational soul?

Title: Re: State motions from 10 May
Post by: RickyJim on May 13, 2013, 10:28:58 AM

The motion "IN LIMINE REGARDING CALLING OF WITNESSES" struck me as meaning DeeDee won't be called at trial. Could they have had anybody else in mind?

Title: Re: State motions from 10 May
Post by: Cylinder on May 13, 2013, 10:48:59 AM

The motion "IN LIMINE REGARDING CALLING OF WITNESSES" struck me as meaning DeeDee won't be called at trial. Could they have had anybody else in mind?

I think it is directed mainly at Serino and other LE witnesses, and some minor and problematic witnesses like Cutcher or W-2.

I think the prosecution will call W-8.

Title: Re: State motions from 10 May
Post by: RickyJim on May 13, 2013, 11:07:57 AM

Both sides have listed many more witnesses than are expected to actually testify. I think that only not calling a witness that was mentioned in the Affidavit of Probable Cause would induce the prosecution to try to stop the defense from mentioning it.

Title: Re: State motions from 10 May
Post by: cboldt on May 13, 2013, 11:59:02 AM

"evidence, testimony, questioning or other reference to self-serving hearsay statements by defendant to witnesses..."

I took that as another motion against Serino's possible testimony. I'm probably wrong though.

I took it as precluding questions to witnesses other than Zimmerman, where the question elicited an answer that included hearsay on Zimmerman's part. Zimmerman saying he was calling for help isn't hearsay on Zimmerman's part. He was there. Zimmerman saying Martin attacked him isn't hearsay on Zimmerman's part either. A witness can answer as to what Zimmerman said, and that isn't hearsay on the witnesses part. The witness heard Zimmerman say something. The hearsay rule prevents the witness from testifying that Zimmerman was calling for help, but it doesn't prevent the witness from testifying as to what Zimmerman said.

I can't make sense of this motion, and I think Nelson will rule that she'll handle objections that touch on this angle, on a question by question basis during the trial.

Title: Re: State motions from 10 May
Post by: MJW on May 13, 2013, 01:30:59 PM

I don't see how the motion to exclude hearsay statements from GZ is even a proper motion. It merely asserts some unspecified statements aren't admissible under any hearsay exception. I would think a motion to rule in advance that statements won't be admitted should have to name the statements, and argue why each one is inadmissible under heresy exceptions and under the doctrine of completeness should the witness be called by the state to testify concerning other statements by GZ.

Title: Re: State motions from 10 May
Post by: MJW on May 13, 2013, 02:40:58 PM

I expected the defense to file a similar slew of motions in limine. I think they should have. They need to oppose the introduction of anything to do with the bond hearing. I think BDLR intends to introduce it on the theory that it's consciousness-of-guilt evidence of intended flight, based on the outlandish conclusions of Judge Lester in the bond order.

Title: Re: State motions from 10 May
Post by: cboldt on May 13, 2013, 02:53:43 PM

I expected the defense to file a similar slew of motions in limine. I think they should have. They need to oppose the introduction of anything to do with the bond hearing. I think BDLR intends to introduce it on the theory that it's consciousness-of-guilt evidence of intended flight, based on the outlandish conclusions of Judge Lester in the bond order.

They have plenty of time to file those motions. The deadline for motions in limine is May 31 or something like that.

Title: Re: State motions from 10 May
Post by: MJW on May 13, 2013, 03:01:02 PM

They have plenty of time to file those motions. The deadline for motions in limine is May 31 or something like that.

You're right. I'd forgotten about that.

Title: Re: State motions from 10 May
Post by: nomatter_nevermind on May 13, 2013, 07:28:43 PM

Jose Baez, in his book on the Casey Anthony trial, mentioned that in Florida a defense attorney can't comment on the prosecution not calling a witness, unless the defense does call the witness.

Title: Re: State motions from 10 May
Post by: nomatter_nevermind on May 13, 2013, 10:22:43 PM

In the motion (http://www.gzdocs.com/documents/0513/051013_protective_order_re_toxicology.pdf) regarding toxicology, it seems the prosecution didn't find any case law on point. In the cases they cite, the person who may have done drugs was a witness.

Title: Re: State motions from 10 May
Post by: MJW on May 14, 2013, 12:18:12 AM

In the motion (http://www.gzdocs.com/documents/0513/051013_protective_order_re_toxicology.pdf) regarding toxicology, it seems the prosecution didn't find any case law on point. In the cases they cite, the person who may have done drugs was a witness.

Yes, and as tara at CTH points out, in Diaz v. State (http://scholar.google.com/scholar_case?case=2157091988356146854&hl=en&as_sdt=2,45), 747 So. 2d 1021 (Fla. 3d DCA 1999) the issue was whether the ME could be cross examined about the blood-alcohol levels of the victim, not whether the ME could testify as a defense witness about the levels. In fact, the ME was called by the defense, and did testify as to the results. BDLR does say that the "evidence is inadmissible as cross-examination," but goes on to inaccurately conclude: "Accordingly, the items listed above are irrelevant to the any charge or defense." Even the statement regarding cross examination was, as the court noted, only true because the ME didn't testify about the toxicology results on prosecution direct.

Title: Re: State motions from 10 May
Post by: nomatter_nevermind on May 16, 2013, 11:27:19 AM

Yes, and as tara at CTH points out, in Diaz v. State (http://scholar.google.com/scholar_case?case=2157091988356146854&hl=en&as_sdt=2,45), 747 So. 2d 1021 (Fla. 3d DCA 1999) the issue was whether the ME could be cross examined about the blood-alcohol levels of the victim, not whether the ME could testify as a defense witness about the levels. In fact, the ME was called by the defense, and did testify as to the results.

At least Diaz v. State was about the toxicology of the victim. (I missed that when I made my previous post. Sorry about that.)

The decision also includes a passing comment on a question not before the court.

Quote

[T]he toxicological results, without the defendant's testimony [that he knew that the victim had a reputation for violence when intoxicated], would have been irrelevant.

It is undisputed that Zimmerman didn't know who Martin was, so there is no question of Zimmerman knowing anything of Martin by reputation.

Unless the defense has some alternate theory of relevance, I think this one goes to the prosecution.

This defense may concede it. It is only the prosecution's speculation that the defense wants to introduce the toxicology report.

Title: Re: State motions from 10 May
Post by: MJW on May 16, 2013, 12:39:09 PM

Unless the defense has some alternate theory of relevance, I think this one goes to the prosecution.

This defense may concede it. It is only the prosecution's speculation that the defense wants to introduce the toxicology report.

I'm pretty sure the defense doesn't intend to suggest TM attacked GZ because he was crazed on demon weed. But they probably will use it limit the prosecution's "false profiling" argument. I don't think BDLR should be able to use GZ's comment "he looks like he's on drugs or something" as part of that argument without the defense having a right to present the toxicology results. A similar (though considerably more blatant) question was considered in Arias v. State (http://scholar.google.com/scholar_case?case=9544453146071640228&hl=en&as_sdt=2,45), 20 So. 3d 980 (Fla. 3d DCA 2009).

Title: Re: State motions from 10 May
Post by: MJW on May 16, 2013, 01:31:09 PM

A bit off topic, but I was looking at related cases and noticed something interesting in Salas v. State (http://scholar.google.com/scholar_case?case=5246391958184842296&hl=en&as_sdt=2,45), 972 So. 2d 941 (Fla. 5th DCA 2007). The court says of Diaz:

Quote

The court noted that if the defendant sought "to elicit testimony from an adverse witness which goes beyond the scope encompassed by the testimony of the witness on direct examination, other than matters going to credibility, he must make the witness his own." 747 So.2d at 1023, quoting from Steinhorst, 412 So.2d at 337. The defendant in Diaz, as here, failed to do so.

The last statement is incorrect. The defense in Diaz did call the ME to testify about the victim's blood-alcohol levels; they were just upset that by doing so, under the rules at the time, they gave up the right to have the final closing argument.

Title: Re: State motions from 10 May
Post by: nomatter_nevermind on May 16, 2013, 07:22:28 PM

Based on the charging affidavit and what BDLR has said in his court papers, I think he intends profiling to be a major focus of the prosecution. I've wondered how he intends to present that issue. Will he just talk about it in his opening and closing statements, or will he call witnesses? I feel that the defense is mainly interested in the negative character evidence about Martin because it could hamstring BDLR on this issue.

Title: Re: State motions from 10 May
Post by: nomatter_nevermind on May 17, 2013, 01:25:59 PM

Based on the charging affidavit and what BDLR has said in his court papers, I think he intends profiling to be a major focus of the prosecution.

Or it could all be for the media.

Do you not even have a theory on how the prosecutors might argue the relevance of the issue?

Zimmerman's 'on drugs' remark isn't mentioned in the affidavit. (http://blogs.chicagotribune.com/news_columnists_ezorn/2012/04/trayvon-martin-shooting-death-affidavit-of-probable-cause-text-version.html) Is it mentioned in other court papers?

Title: Re: State motions from 10 May
Post by: MJW on May 17, 2013, 01:41:12 PM

Do you not even have a theory on how the prosecutors might argue the relevance of the issue?

Zimmerman's 'on drugs' remark isn't mentioned in the affidavit. (http://blogs.chicagotribune.com/news_columnists_ezorn/2012/04/trayvon-martin-shooting-death-affidavit-of-probable-cause-text-version.html) Is it mentioned in other court papers?

The only thing I can think of is that it will be part of establishing the "depraved mind" element. I don't recall any specific mention of GZ's "on drugs or something" comment, but I think that BDLR may want to use it as part of the "false profiling" claim; or at least the defense needs to be prepared if they do.

Title: Re: State motions from 10 May
Post by: nomatter_nevermind on May 17, 2013, 02:01:58 PM

The only thing I can think of is that it will be part of establishing the "depraved mind" element.

Right. I keep forgetting to take the M2 part seriously.

I doubt the prosecutors believe they can convict on M2, but they've charged it, so they can argue the elements.

Title: Re: State motions from 10 May
Post by: nomatter_nevermind on May 17, 2013, 02:29:51 PM

Wikipedia (http://en.wikipedia.org/wiki/Motion_in_limine)

Quote

If the motion in limine to exclude evidence is granted, then the excluded records would be prohibited from being presented without specific approval from the judge at the time the party wants to offer the evidence.

If this is correct, an order in limine doesn't preclude a party from asking for the issue to be revisited if the other party opens a door.

The prosecution's intentions may be discussed in the hearing on the motion.

Title: Re: State motions from 10 May
Post by: MJW on May 17, 2013, 03:45:10 PM

Wikipedia (http://en.wikipedia.org/wiki/Motion_in_limine) If this is correct, an order in limine doesn't preclude a party from asking for the issue to be revisited if the other party opens a door.

The prosecution's intentions may be discussed in the hearing on the motion.

That's what the DCA said should have happened in a case I mentioned yesterday, Arias v. State. The trial court granted a motion in limine to exclude the victim's 0.21 blood-alcohol level and cocaine traces, but the prosecutor opened the door by his argument.

In my opinion, a self-defense case victim's trace marijuana level shouldn't be admitted as evidence without some showing of relevancy, but a 0.21 blood-alcohol level certainly should be. I don't see how the jury can properly evaluate what occurred without knowing the victim was drunk.

Title: Re: State motions from 10 May
Post by: unitron on May 17, 2013, 09:16:59 PM

That's what the DCA said should have happened in a case I mentioned yesterday, Arias v. State. The trial court granted a motion in limine to exclude the victim's 0.21 blood-alcohol level and cocaine traces, but the prosecutor opened the door by his argument.

In my opinion, a self-defense case victim's trace marijuana level shouldn't be admitted as evidence without some showing of relevancy, but a 0.21 blood-alcohol level certainly should be. I don't see how the jury can properly evaluate what occurred without knowing the victim was drunk.

Wasn't the deal in that case that the ME, when testifying as to cause of death, wasn't allowed, during cross by the defense, to mention the deceased's BAC because that wasn't the cause of death, getting stabbed was, and the prosecution only called the ME to testify as to cause of death, but later the defense was able to call the ME as their witness to ask about the BAC?

Title: Re: State motions from 10 May
Post by: nomatter_nevermind on May 17, 2013, 09:46:41 PM

That's what the DCA said should have happened in a case I mentioned yesterday, Arias v. State.

Wasn't the deal in that case that the ME, when testifying as to cause of death, wasn't allowed, during cross by the defense, to mention the deceased's BAC because that wasn't the cause of death, getting stabbed was, and the prosecution only called the ME to testify as to cause of death, but later the defense was able to call the ME as their witness to ask about the BAC?

Title: Re: State motions from 10 May
Post by: MJW on May 17, 2013, 11:29:32 PM

Coincidentally, the Diaz and Arias victims had the same .21 blood-alcohol level. In both cases the DCA said the juries should have been allowed hear the results, but only because the defense established the relevance for reasons beyond the obvious fact that excessive alcohol consumption affects behavior.

Title: Re: State motions from 10 May
Post by: FromBelow on May 21, 2013, 12:39:44 PM

How did you find that? Separately, I notice that the last part of the URL's starts with a number, "173" in this case. There are some gaps in number assignments, on reviewing the GZLegal website. I haven't tried to discover hidden URL's with a web spider, but maybe it's worth a shot.

Title: Re: State motions from 10 May
Post by: unitron on May 21, 2013, 12:57:35 PM

From O'Mara's description of the swaying at the counter it appears he was given one of those copies of the 7-Eleven videos that does not run at one second per second and therefore exaggerates small motions by making them appear to go on much longer than they actually did.

I wonder if that was intentional on the part of the state, to get him to argue one thing and present a good copy at trial that shows something else.

Title: Re: State motions from 10 May
Post by: nomatter_nevermind on May 21, 2013, 02:37:47 PM

From O'Mara's description of the swaying at the counter it appears he was given one of those copies of the 7-Eleven videos that does not run at one second per second and therefore exaggerates small motions by making them appear to go on much longer than they actually did.

If Martin was swaying, does it matter if he was swaying fast or slow?

Title: Re: State motions from 10 May
Post by: MJW on May 21, 2013, 03:02:11 PM

It the courts required more than evidence for impairment to establish the relevance of a victim's 0.21 blood-alcohol level, I can't see them requiring admission of a low-level marijuana level for that purpose alone. I still think it should come in if the state challenges GZ's description of TM looking like he was on drugs.

I definitely thought Martin looked like he was on something at the 7-Eleven, but that could be confirmation bias, I suppose.

Title: Re: State motions from 10 May
Post by: unitron on May 22, 2013, 05:28:12 AM

What matters is if he could be made to appear to be swaying when he wasn't.

If someone says those screams couldn't possibly be Zimmerman because his voice is too low and they play back a recording of him at half-speed to prove it, would you agree with them if you'd never heard him speak before?

Title: Re: State motions from 10 May
Post by: unitron on May 22, 2013, 05:32:00 AM

Do y'all think that people in motion picture footage from the early 20th Century really walked all funny and jerky like that?

Or does the difference in frame rates when copies are made on more modern equipment seem a more likely explanation?

Title: Re: State motions from 10 May
Post by: nomatter_nevermind on May 22, 2013, 12:51:08 PM

one of those copies of the 7-Eleven videos that does not run at one second per second and therefore exaggerates small motions by making them appear to go on much longer than they actually did.

I don't understand the explanation.

Title: Re: State motions from 10 May
Post by: FromBelow on May 22, 2013, 01:23:03 PM

There's a video that clearly shows Trayvon swaying back and forth. It starts at about 20 seconds in.

https://www.youtube.com/watch?v=tvwhGVWAdjI

Title: Re: State motions from 10 May
Post by: RickyJim on May 22, 2013, 01:43:22 PM

Why does the hoodie look much darker than the one in the recently released evidence photos? I don't notice the swaying. I have a suspicion that this line of evidence isn't a good idea. Some jurors might be as dense as I am. :D

Title: Re: State motions from 10 May
Post by: nomatter_nevermind on May 22, 2013, 01:47:28 PM

Why does the hoodie look much darker than the one in the recently released evidence photos? I don't notice the swaying. I have a suspicion that this line of evidence isn't a good idea. Some jurors might be as dense as I am. :D

Wet v Dry, lighting, camera

All things that can have that effect.

If you have a grey sweatshirt in your closet go get it an poor a little water on it, it gets rather dark, coupled with different lighting conditions and different cameras with different settings.

Either that or we can create the 2Tray theory. ;)

Title: Re: State motions from 10 May
Post by: nomatter_nevermind on May 22, 2013, 03:21:49 PM

Just to make sure, is DSC_0196.JPG, the sweatshirt TM wore under the dark blue looking hoodie in the 711 video?

No, that's the hoodie.

Btw, all these comments about how the hoodie looks in the 7-11 video are likely to be deleted the next time Jeralyn takes a look. I think she is particularly careful of the Court Matters threads.

Title: Re: State motions from 10 May
Post by: leftwig on May 22, 2013, 09:39:15 PM

Why would the hoodie comments be deleted? The video and pictures are evidence. I would think comments about how the hoodie in the 7-11 video looks much darker than the one photographed in evidence would be a relevant discussion point.

Title: Re: State motions from 10 May
Post by: TalkLeft on May 22, 2013, 09:46:55 PM

I'm not deleting any photos or discussion about photos that either party has indicated they want to introduce in evidence.

Title: Re: State motions from 10 May
Post by: FromBelow on May 22, 2013, 11:05:32 PM

The active THC was measured at 1.5 ng/mL whereas the metabolite was measured at 7.3 ng/mL. This level is sufficient to cause some impairment (although it is considered to be less than that required for a DUI arrest) according to the state's toxicologist, Dr. Bruce Goldberger. . . . Dr. Goldberger opined that Trayvon Martin could have used marijuana within a couple of hours of his death.

Both the level of impairment and mimimum time after last use are surprising to me. They contradict much of what was written at the time the autopsy report was released.

Title: Re: State motions from 10 May
Post by: annoyedbeyond on May 23, 2013, 07:48:11 AM

Both the level of impairment and mimimum time after last use are surprising to me. They contradict much of what was written at the time the autopsy report was released.

Shoulda listened to some of us before!

;)

Title: Re: State motions from 10 May
Post by: DebFrmHell on May 23, 2013, 08:48:38 AM

The ME's office took head and pubic hair from Martin but I have seen no record as to those results. The hair samples were sent to be analyzed by NMS Laboratories . They would show if he was a chronic user or was just recreational.

The only thing released were the blood samples.

Title: Re: State motions from 10 May
Post by: RickyJim on May 23, 2013, 09:14:01 AM

All the evidence in this case seems to be in three categories

Known only to the prosecution.

Known only to the prosecution and defense.

Known to the prosecution, defense and public.

The Florida Sunshine and Discovery Laws are so confusing that it is impossible to know if an example like Deb just gave (not a 3) is a 1 or 2. :(

Title: Re: State motions from 10 May
Post by: RickyJim on May 23, 2013, 07:44:55 PM

Today the defense issued a Defendant's Reply to State's Motion in Limine Regarding Self Serving Hearsay Statements of the Defendant (http://www.gzdocs.com/documents/0513/052313_reply_to_hearsay.pdf). All it seems to say is instead of ruling all of Zimmerman's prior statements out in limine as hearsay, let them be considered one at a time as the defense proposes to use them. It is not clear to me why the state issued the original motion (http://www.gzdocs.com/documents/0513/051013_limine_hearsay.pdf) and why the defense opposes it. You would think the state would want to get the Hannity interview and other places where Zimmerman doesn't shine into their case. Doesn't the prosecution motion also apply to the prosecution? Why doesn't the NEN call fall under the inadmissible hearsay rule? If Zimmerman doesn't testify, they can't refer to his prior inconsistencies and one would think that then they are done for.

Title: Re: State motions from 10 May
Post by: MJW on May 23, 2013, 07:53:34 PM

The state can use almost anything GZ said under the "admissions" hearsay exception.

Title: Re: State motions from 10 May
Post by: RickyJim on May 23, 2013, 08:06:49 PM

Why would the hoodie comments be deleted? The video and pictures are evidence. I would think comments about how the hoodie in the 7-11 video looks much darker than the one photographed in evidence would be a relevant discussion point.

I certainly agree as I've got a hoodie of a shade of grey very similar to the one in today's pictures, and it's impossible to get it wet enough to make it as dark as the one in the 7-Eleven video.

Title: Re: State motions from 10 May
Post by: MJW on May 23, 2013, 08:27:47 PM

One of the exceptions to excluding hearsay is when the statement of one party (in this case, GZ) is used against that party by the other party (in this case, the state):

Quote

ADMISSIONS.óA statement that is offered against a party and is:(a) The partyís own statement in either an individual or a representative capacity;

So the prosecution can use GZ's hearsay statements under an exception that doesn't apply to the defense.

I should clarify that when I said, "The state can use almost anything GZ said," I meant that it would not be excluded because it's hearsay. It could still be inadmissible as irrelevant or more prejudicial than probative.

Title: Re: State motions from 10 May
Post by: nomatter_nevermind on May 23, 2013, 08:32:36 PM

So anything you say may be used against you, but that doesn't mean they'll let you use any of it for you?

Hardly seems fair.

Another reason why 'even' the innocent should lawyer up.

Title: Re: State motions from 10 May
Post by: RickyJim on May 23, 2013, 08:38:49 PM

is there a precise legal definition of self serving hearsay or is it something like the judge saying, "I know it when I see it."? I am still not clear on what the prosecution is afraid the defense might sneak in so they filed an in limine motion.

Title: Re: State motions from 10 May
Post by: RickyJim on May 23, 2013, 08:45:39 PM

is there a precise legal definition of self serving hearsay or is it something like the judge saying, "I know it when I see it."? I am still not clear on what the prosecution is afraid the defense might sneak in so they filed an in limine motion.

That's actually a somewhat tricky question. Some courts have excluded statements that would otherwise be admissible under a hearsay exception because they amount to the defendant testifying without being subject to cross examination. That's not the rule in Florida. By definition, a self-serving statement isn't admissible as an admission, but if it's admissible under any valid hearsay exception, it can't be excluded simply because it's self serving. See, for instance, Bryant v. State (http://scholar.google.com/scholar_case?case=9805753067217058728&hl=en&as_sdt=2,45), 98 So. 3d 1252 (Fla. 4th DCA 2012). To some extent, I think the reference to "self serving" is just BDLR being BDLR.

Title: Re: State motions from 10 May
Post by: Cylinder on May 23, 2013, 09:18:36 PM

It's probably more appropriate for a learned poster to explain, but there's also a doctrine of completeness. When Zimmerman identifies himself as the shooter, the defense can introduce his next part of the statement where he asserts it was in self-defense but that doesn't admit a statement made an hour later where he explains other things away.

Title: Re: State motions from 10 May
Post by: RickyJim on May 23, 2013, 09:35:52 PM

My questions about the hearsay motions come from my opinions about the evidence. O'Mara should let BDLR rant and rave and put the jury to sleep about all the contradictions and absurdities in Zimmerman's out of court statements. He could just point out that they don't show Zimmerman didn't reasonably fear for his life BRD before shooting in his closing statement. Putting Zimmerman on the stand or trying to introduce statements Bernie didn't use would be totally idiotic. He's got the EMTs, and Witnesses 6 and 11 (with scream tape) and possibly naughty Trayvon stuff and that is more than enough for reasonable doubt. However I take it all back if the prosecution has some GPS dynamite.

Title: Re: State motions from 10 May
Post by: DebFrmHell on May 23, 2013, 09:43:18 PM

I certainly agree as I've got a hoodie of a shade of grey very similar to the one in today's pictures, and it's impossible to get it wet enough to make it as dark as the one in the 7-Eleven video.

Every time I see this kind of discussion, I wonder about the change in information regarding ME-8 and 12. One is described as a hoodie, the other is described as a shirt when both are actually hoodies.

IMO ONLY! Could the confusion that caused the switch of information been correct in the first place? Didn't two or three witnesses describe light or white clothing?

Title: Re: State motions from 10 May
Post by: unitron on May 23, 2013, 09:56:05 PM

Every time I see this kind of discussion, I wonder about the change in information regarding ME-8 and 12. One is described as a hoodie, the other is described as a shirt when both are actually hoodies.

IMO ONLY! Could the confusion that caused the switch of information been correct in the first place? Didn't two or three witnesses describe light or white clothing?

There was a release of stuff a while back that showed pictures of the lighter colored Nike brand shirt (supposedly a sweatshirt, and complete with Swoosh that The Hoodie does not have) that was worn underneath "The Hoodie", and I don't remember seeing any sort of hood attached to it, and since there's a bullet hole in it, it's not Zimmerman's.

There probably wasn't enough time to get to Brandy's and change the wet dark hoodie for a dry lighter gray one and still get back up to the "T" silently enough to surprise Zimmerman, but the color discrepancy makes me wonder.

Title: Re: State motions from 10 May
Post by: nomatter_nevermind on May 23, 2013, 10:01:15 PM

There probably wasn't enough time to get to Brandy's and change the wet dark hoodie for a dry lighter gray one and still get back up to the "T" silently enough to surprise Zimmerman, but the color discrepancy makes me wonder.

I think there was time for that, but I doubt Martin would transfer button, candy, and beverage to the new garment.

ETA: I think that should be 'candy, button, and beverage', for the alliteration.

Not quite as catchy as 'bell, book, and candle'.

Title: Re: State motions from 10 May
Post by: DebFrmHell on May 23, 2013, 11:33:51 PM

DISCLAIMER: I didn't go to the website so I have no idea what it is about.

I truncated the address and found a NSFW picture of Jennifer Aniston.

ME-8 has no hood.

ME-12 looks very dark.

Title: Re: State motions from 10 May
Post by: TalkLeft on May 24, 2013, 03:26:50 AM

There's a document in the discovery that explains the early reports were wrong and switched them. ME#8 is the gray sweatshirt and ME#12 is the dark blue hooded sweatshirt. One is Nike and one is Fruit of the Loom. I only remember because it was obvious the early reports had them backwards and it bothered me at the time, so I was glad to see the state acknowledge the error.

I wrote back in May, 2012 (http://www.talkleft.com/story/2012/5/27/41053/5361/crimenews/Zimmerman-The-Discovery-and-the-Witnesses):

Quote

Trayvon Martin was wearing a dark gray hooded Fruit of the Loom sweatshirt with a light gray Nike sweatshirt (or lighter gray shirt with long sleeves) underneath. All the police reports (http://talkleft.com/zimm/policeshirts.pdf) refer to the hoodie as ME-8 and the lighter shirt as ME-12. (Here's a similar reference in Chris Serino's report (http://talkleft.com/zimm/serinoshirts.pdf).) But, the DNA (http://talkleft.com/zimm/dnatestshirt.pdf) and gun residue reports (http://talkleft.com/zimm/tmshirts.pdf)label the hoodie as ME-12 and the lighter shirt as ME-8. So it's not clear which results came from the hoodie and which from the lighter gray shirt or whether any of the testing can be considered reliable.

And brought it up again here (http://www.talkleft.com/story/2012/5/20/6642/30597/crimenews/-George-Zimmerman-State-of-the-Evidence).

The acknowledgement of the mistake is on page 6 (http://i311.photobucket.com/albums/kk453/TalkLeft/zimmerman/correctedshirtreport_zps2c446378.jpg)of the 262 page discovery release.

Title: Re: State motions from 10 May
Post by: DebFrmHell on May 24, 2013, 09:21:18 AM

There's a document in the discovery that explains the early reports were wrong and switched them. ME#8 is the gray sweatshirt and ME#12 is the dark blue hooded sweatshirt. One is Nike and one is Fruit of the Loom. I only remember because it was obvious the early reports had them backwards and it bothered me at the time, so I was glad to see the state acknowledge the error.

I wrote back in May, 2012 (http://www.talkleft.com/story/2012/5/27/41053/5361/crimenews/Zimmerman-The-Discovery-and-the-Witnesses):

And brought it up again here (http://www.talkleft.com/story/2012/5/20/6642/30597/crimenews/-George-Zimmerman-State-of-the-Evidence).

The acknowledgement of the mistake is on page 6 (http://i311.photobucket.com/albums/kk453/TalkLeft/zimmerman/correctedshirtreport_zps2c446378.jpg)of the 262 page discovery release.

In the just released photo the light grey sweatshirt has a hood. In the original, there is no hood. Surely they wouldn't have washed or bleached it out.

Title: Re: State motions from 10 May
Post by: MJW on May 24, 2013, 03:02:29 PM

The defense responds (http://www.gzdocs.com/documents/0513/052413_response_to_limine_tm.pdf) to the state's motion in limine regarding character evidence about Martin.

Title: Re: State motions from 10 May
Post by: MJW on May 24, 2013, 03:08:20 PM

The most provocative revelation in the response is that the Feb. 26 text messages between W8 and TM show they were hostile and angry toward each other at various points throughout the day. Perhaps that explains W8's feelings of guilt. The response doesn't mention it, but it also seems like the text messages are possibly relevant as impeachment, since she gave no indication of anything like that in the interviews.

Title: Re: State motions from 10 May
Post by: cboldt on May 24, 2013, 03:16:55 PM

The most provocative revelation in the response is that the Feb. 26 text messages between W8 and TM show they were hostile and angry toward each other at various points throughout the day. Perhaps that explains W8's feelings of guilt. The response doesn't mention it, but it also seems like the text messages are possibly relevant as impeachment, since she gave no indication of anything like that in the interviews.

You picked up the same hot bullet point that struck me.

The response also touches on Martin having been suspended from school, and being under suspension when he was shot; pot use (which I don't think swings much weight); experienced fighter; the screen name that "if taken literally would reflect an attitude toward life without self-imposed limits"; text messages prior to Feb 26 including efforts to purchase an illegal firearm; usefulness of much of this evidence to impeach testimony of others.

Looking forward to Bernardo's replies to the responses.

Title: Re: State motions from 10 May
Post by: cboldt on May 24, 2013, 03:28:11 PM

The most provocative revelation in the response is that the Feb. 26 text messages between W8 and TM show they were hostile and angry toward each other at various points throughout the day. Perhaps that explains W8's feelings of guilt. The response doesn't mention it, but it also seems like the text messages are possibly relevant as impeachment, since she gave no indication of anything like that in the interviews.

BTW, I found a case that touches on the threshhold for reputation evidence. Simon v. State, 4D08-2903 (http://www.4dca.org/opinions/June%202010/06-09-10/4D08-2903and4D08-2904.op.pdf) (Fla. 4th DCA, 2010)

"(R)eputation evidence 'must be based on discussions among a broad group of people so that it accurately reflects the person's character, rather than the biased opinions or comments of . . . a narrow segment of the community. ...

On cross-examination however, the (character reputation) witness acknowledged that her basis of knowledge as to the victimís reputation was one brief meeting with the victim, and a remote conversation with the victimís ex-girlfriend. In fact, up until the time of trial, the witness did not know the victimís real name.

We agree with the trial court that the witnessís knowledge of the victimís reputation for violence derived from too narrow a segment of the community to be sufficiently reliable.

I mention this because W8 may be sufficient, on her own, to provide reputation evidence. She's known him for quite awhile, and presumably knows how other people view Martin's reputation.

Edit to repair open hyperlink tag and format mangling cause by square braces

Title: Re: State motions from 10 May
Post by: DebFrmHell on May 24, 2013, 06:02:50 PM

My biggest fear RE: Nelson is that she needs so much time to make a legal decision. What is going to happen when the trial starts? When the Defense objects will she still think that it is a reversible error to be corrected after the trial? It boggles my mind that she is willing until after a trial to make decisions when a man's future is at stake. If GZ is acquitted, then it is "no harm no foul." If he isn't, well, he can gather more cash to fight an appeal?

I just want an even playing field. Just my layperson's opinion. You all run circles around me but you helped me learn. I appreciate that.

Title: Re: State motions from 10 May
Post by: unitron on May 24, 2013, 06:33:09 PM

In the just released photo the light grey sweatshirt has a hood. In the original, there is no hood. Surely they wouldn't have washed or bleached it out.

Plus the light colored garment, which didn't have a hood that I noticed in the previously released pictures, did have the Nike Swoosh logo on the left front, not to mention blood around the bullet hole.

Title: Re: State motions from 10 May
Post by: RickyJim on May 24, 2013, 06:53:42 PM

So the current understanding is that TM wore two gray sweatshirt like garments, the one on top having a hoodie and turns dark blue-black in 711 light?

Title: Re: State motions from 10 May
Post by: nomatter_nevermind on May 24, 2013, 07:00:13 PM

Next week I expect BDLR to file a new motion: State's Motion Requesting Court to Order Defendant to Comply with Their Discovery Obligations but Not Quite That Much.

Heheheh.

He's got a tough hand, but I think he likes doing what he does. "Whatever it takes."

Title: Re: State motions from 10 May
Post by: MJW on July 03, 2013, 06:31:09 PM

Motion to preclude defense from eliciting testimony or mentioning to the effect that the state's failure to call certain witnesses is because those witnesses were not favorable to the state.

I'd assumed this was mostly about Serino because one line says, "where neither party calls a witness, neither party is permitted to comment on the witness's nonappearance -- even where the witness is the lead detective in the case." Perhaps the state was just stressing how broad the prohibition is; perhaps they were still undecided about calling Serino; or perhaps they were purposely attempting to mislead the defense. In any case, I now suspect the motion was mostly about Tracy Martin.

Title: Re: State motions from 10 May
Post by: nomatter_nevermind on July 04, 2013, 01:27:25 AM

I think calling Tracy would be quite dangerous, since he would undoubtedly claim it was Trayvon screaming, and his original statements were misinterpreted or misrepresented. I believe there's also a significant legal problem: A party may not call a witness for the purpose of impeaching the witness with an otherwise-inadmissible prior statement.

Section 90.608(1), Florida Statutes (2010), provides that a party may impeach a witness by introducing statements of the witness which are inconsistent with the witness's present testimony. However, "if a party knowingly calls a witness for the primary purpose of introducing a prior statement which otherwise would be inadmissible, impeachment should ordinarily be excluded."

Title: Re: State motions from 10 May
Post by: annoyedbeyond on July 04, 2013, 06:37:00 AM

So they say they were calling him expecting that he'd repeat what he'd already said and were shocked-SHOCKED!--when he suddenly changed his story.

Then it's up to JDN, and that's when it becomes a goat screw.

So basically I agree with MJW, the defense stays far away from Tracy unless they have something we aren't aware of.

But: could O'Mara, in his closing, mention that Tracy said it wasn't TM's voice?